In a highly awaited software copyright decision, the U.S. Supreme Court recently held that Google LLC’s copying of Oracle’s Java application programming interface (API) is a fair use as a matter of law. Java is a programming language and computing platform originally developed by Sun Microsystems, Inc., which was acquired by Oracle America, Inc. in 2009. Java is popular and widely used in many applications such as laptops, game consoles, supercomputers, mobile phones and websites because it provides clear and consistent code.
The Java API includes a list or directory of functions that are part of the Java development kit, which is a collection of tools and libraries necessary for programmers to develop applications using Java. This list includes thousands of function calls organized into groups. For example, a programmer can simply insert “Math.max (a,b)” into a line of the code when it is needed to determine which of the two numbers, a and b, is higher. This “name” calls up a prewritten function routine that calculates the higher number.
In developing its Android application for mobile phones, Google exactly copied the naming convention and organization of the Java API. However, Google did not copy the function routines called up by the Java API function calls. For the reason of efficiency, the Supreme Court did not decide the issue of whether the copied material was copyrightable. However, the naming convention and organization of the Java API function calls appears to be copyrightable. It is well established that the level of creativity needed for a work to be copyrightable is extremely low. The work need not be novel; it need only possess a “spark” or “minimal degree” of creativity to be protected by copyright. However, the court did decide whether this exact copying of a copyrightable work was a fair use.
The legal doctrine of fair use permits the unauthorized use of copyright-protected works in certain circumstances. The Copyright Act provides a statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship and research—as examples of activities that may qualify as fair use. The statute requires consideration of four factors in evaluating a question of fair use:
- Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
- Nature of the copyrighted work, including the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression;
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- Effect of the use upon the potential market for or value of the copyrighted work.
In analyzing fair use, the court addressed each of these four factors:
- Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. The court indicated that the first factor primarily turned on the fact that the copying at issue was transformative. That is, it adds something new to further a different purpose. The court found that Google copied only what was needed to allow programmers to work in a different computing environment (smart phones) without discarding a familiar portion of a computing language. Thus, the first factor weighed toward fair use. The court did not seem to consider that Google’s use of Android is commercial, rather than nonprofit or educational, which is the usual tipping point for the first factor. Additionally, it seems odd to consider smart phones a new computing environment when one of the strengths of Java is that it is useful in all computing environments including mobile devices.
- Nature of the copyrighted work, including the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. With regard to the second factor, the court emphasized that the value of the Java API is based upon the fact that Java is widely used and thus many computer programmers have invested time and effort in learning the Java API. The value of the Java API is not the inherent creative expression of the code. Thus, the second factor weighed toward fair use. It should additionally be noted that permitting unlicensed use of the widely used nomenclature of the Java programming language seems to further the constitutional mandate of encouraging creating expression.
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole. In addressing the third factor, the court emphasized that Google copied one percent or less of Java even though it exactly copied about 10,000 lines of code. Thus, the third factor weighed toward fair use. However, little weight appears to have been given to the fact that Google copied the most important or valuable part of the Java API code, because the function routines themselves can be easily replicated by inexperienced programmers, but nearly all programmers know and use the Java API nomenclature.
- Effect of the use upon the potential market for or value of the copyrighted work. With regard to the fourth factor, the court found that Oracle was unlikely to compete in the Android marketplace and copying by Google creates more opportunities for others. Thus, the fourth factor weighed in favor of fair use. However, the fourth factor typically relates to the impact the use has on the copyrighted work. Permitting the copying of the Java API clearly reduces market value of the Java code for Oracle. In fact, Google was in negotiations with Oracle for a license to Java for developing Android before negotiations were halted and Google proceeded to copy the Java API rather than obtain a license because it believed that Oracle’s royalty demands were unreasonable.
At first blush, the court’s application of copyright law seems somewhat questionable. In fact, Judge Clarence Thomas’ dissent indicates that it is outright incorrect. As discussed above, three of the four fair use factors arguably could weigh against fair use. However, a single one of the factors can overcome the other three factors and that appears to be what may have occurred in this case. Additionally, the court may have heavily weighted the practical consideration of the negative impact on the information technology industry and the U.S. economy that would result from prohibiting computer programmers from using the widely-used nomenclature of the Java programming language without a license.