Oracle v. Google: What Does the Supreme Court Decision Mean for Software Companies?

April 9, 2021Alerts

After over 10 years of litigation, the U.S. Supreme Court ruled this week in Oracle v. Google that Google’s use of 11,500 lines of Oracle’s code in its Android platform was a fair use.

Borrowing the code made it easier for programmers familiar with the Java language to work with Android.

The court limited its decision to fair use, bypassing the copyrightability of Oracle’s declaring code. The court applied the four “fair use factors” from Section 107 of the Copyright Act, finding all four favored fair use. The court rejected the contention that certain fair use factors are more or less important, regardless of work or context.

Avoiding the question of copyrightability directly, the court alluded to its stance while analyzing the “nature” of Oracle’s code. The court emphasized the functional, organizational, and instructional nature of Oracle’s declaring code, which it stated is “inextricably bound” to uncopyrightable elements and ideas.

The court differentiated “core” copyright works from those further away. The closer a work is, the stronger the protection it is afforded. It stated that Oracle’s declaring code is “further than are most computer programs,” and questioned whether declaring code is protected by copyright at all.

Weighing the potential public benefits of allowing the copying of largely functional works against the potential public harms, the court further noted that Google copied Oracle’s declaring code not because of the code’s “creativity,” “beauty,” or “purpose,” but because programmers were familiar with the system. Without access to this code, Google would have been forced to create, and require programmers to learn, an entirely new system.

The court said that barring the use of such code could create unreasonable barriers of entry, especially where the use is limited in nature and when copying is a matter of user acquiescence or specialized knowledge. The court noted that scores of programmers already used Java so their knowledge of it went to Google’s purpose of copying code. And it found Google’s use was “transformative” and consistent with “creative progress.”

The court’s decision prompts several new questions concerning the fair use and copyrightability of software.

  • Are any organizational structures still copyrightable?
  • How does this impact other computer languages?
  • If other languages are protected, what, if any, aspects are competitors free to copy?

To address this uncertainty, software companies can bolster protections for their software products and services by modifying how they deliver them to users, building in certain modifications to their codes structure, implementing creative decisions in their organizational structures and reinforcing additional protections like strong terms of service and terms of use agreements.


For more information about the topic of this alert, contact author Adam Wolek at [email protected] or 312.517.9299.